Citation Nr: 0102286
Decision Date: 01/26/01 Archive Date: 01/31/01
DOCKET NO. 99-21 562 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for the
cause of the veteran's death.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
Daniel R. McGarry
INTRODUCTION
The veteran had active service from May 1944 to January 1947,
from January 1948 to December 1956, and from January 1957 to
November 1958.
REMAND
The statement of the case is not adequate. The issue before
the Board is whether there is new and material evidence to
reopen a claim for service connection for the cause of death.
The issue is not service connection for the cause of death.
The statement of the case (in the reasons and bases) informed
the appellant of the need to submit evidence of a well
grounded claim. The statement of the case did not inform the
appellant of the need to submit new and material evidence.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent court
decisions that are subsequently issued
also should be considered. If the benefit
sought on appeal remains denied, the
appellant and the appellant's
representative, if any, should be provided
with a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
2. The RO must issue a supplemental
statement of the case that informs the
appellant that there is a prior final
decision and that she must submit new and
material evidence in order to reopen the
claim.
3. The appellant is informed that the
service medical records are no longer
available. Regardless, she remains under
an obligation to submit new and material
evidence. The appellant is informed that
if she can obtain or generate evidence
that links the cause of death to service
(to include new and material evidence)
that evidence must be submitted by her.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).